THE QUEEN v. CHU MAN CHIU

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was convicted on a plea of guilty before Deputy Judge Daniell in the High Court of being in possession of 1,682.45 grammes of a mixture containing. 1,451.30 grammes of salts of esters of morphine and was sentenced to 17 years of imprisonment. He now applies for leave to appeal against that sentence.

2. The agreed facts of the case were that at 10.35 p.m. on 25th June 1990, police officers followed the applicant into the lobby of the Copenhagen Hotel in Mongkok. He was carrying a brown leather satchel. The officers seized the satchel but were unable to open it. At their request the applicant told them the number which operated the combination lock. On opening the satchel they found 5 bags of No. 4 heroin. Under caution the applicant said that the drugs did not belong to him. He added that at 10 p.m. that evening he had been asked by someone whom he only knew as Ah Ping to take a room at the hotel and leave the drugs there. He was then to wait until paged by Ah Ping when he would give the room key to him and receive payment of $4,000 or $5,000. Ah Ping has never been traced.

3. The applicant is not a drug addict. In mitigation his counsel said that he had got into financial difficulties owing to the fact that he had become unemployed and was unable to support himself and to pay for his mother's medical expenses. He borrowed $8,000 from Ah Ping which he was unable to repay. Ah Ping then exploited the applicant's predicament and suggested that he should carry "a bag of things" for him to the Copenhagen Hotel. The applicant was not expressly told what it was that he was being asked to carry, but he strong suspected that it was dangerous drugs. For performing this service Ah Ping promised to release him from payment of the $8,000 debt and to pay him $4,000 or $5,000. The explanation given for the extraordinary fact that the applicant, a mere courier, knew the combination of the lock on the leather satchel was that he happened to notice the number when Ah ping was inserting the drugs.

4. In passing sentence the Deputy Judge observed that if the applicant had been convicted after a contested trial the appropriate sentence would have been one in the region of 25 years. Mr. Egan, who appeared on behalf of the applicant in this court but not in the court below, submitted that the sentence of 17 years which was imposed is manifestly excessive. He acknowledged that the guidelines laid down in R v. Lau Tak-ming [1990]2 HKLR 370 are applicable, but submitted that they were never intended to be regarded as a straight-jacket. He submitted that as the applicant had cooperated with the police, had indicated his intention to plead guilty at the first opportunity and had in fact so pleaded on arraignment, were matters that would have justified the deputy judge in departing from the guidelines. Moreover, there was no indication of the amount of profit that would have been made on the eventual sale of the drugs. Nor was there any evidence that the applicant had received any financial reward for his role in the operation.

5. The assertion that the applicant had been exploited by the mysterious Ah Ping, who has not been apprehended, carries no weight with this court. Nor do we consider that the fact that the amount of profit which would have been made on the sale of the drugs is unknown, and that the applicant himself obtained no financial gain from this transaction, are matters which are of any assistance to him in mitigation of sentence. As a matter of common sense, had the operation been successful, the profit would have been enormous. It is said that the applicant was no more than a courier. However, it is an inescapable fact that the trade in dangerous drugs could not survive but for the existence of these important links in the chain of distribution. In R. v. Lau Tak-ming this court made it plain that drug offences are of the utmost gravity and that mitigating factors which in less serious offences could lead to a discount, have little weight.

6. Mr. Egan also made a tentative submission that Article 6(3) of the Hong Kong Bill of Rights Ordinance has application to the length of sentences that can lawfully be imposed by the courts. The relevant part of Article 6(3) provides:

 

"(3)    The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation......"

7. In our view however this has no bearing whatever on the appropriateness of sentences imposed by the courts. It relates only to the treatment of prisoners in a correctional institution while they are undergoing sentence.

8. This brings us to Mr. Egan's final submission that since the applicant had been in possession of the drugs for no more than 35 minutes, it was inhumane to sentence him to 17 years imprisonment. But culpability in cases such as this are not measured by reference to the length of time an offender has the drugs in question in his possession. What is of relevance is the lifetime of suffering that the victims of drug addiction are likely to endure as a consequence of the actions of criminals such as the applicant. That is the time factor with which the courts are concerned.

9. The quantity of drugs in the present case fell into the "very large quantities" category referred to in R. v. Lau Tak-ming, for which sentences in excess of 20 years are appropriate. Although the applicant pleaded guilty and must therefore receive some reduction of sentence on that account, it is plain that, having been caught red-handed, he had no real prospect of mounting even the beginnings of a plausible defence. We are satisfied that the sentence was neither manifestly excessive nor wrong in principle. The application is therefore refused.